Citation Nr: 1753396 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 10-20 446 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUES 1. Entitlement to service connection for residuals of a left knee injury and subsequent surgery, to include as secondary to service-connected right knee disability. 2. Entitlement to service connection for left knee scars residual to left knee surgery. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from February 18, 2003 to February 28, 2003. She also had service with the National Guard from November 2002 to April 2003. This appeal to the Board of Veterans' Appeals (Board) arose from a January 2009 rating decision in which the RO, inter alia, denied service connection for a left knee disability and left knee scars. The Veteran filed a notice of disagreement (NOD) in February 2009, and the RO issued a statement of the case (SOC) in March 2010. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in May 2010. In March 2015, the claims on appeal were remanded to provide the Veteran with her requested Board hearing. In July 2015, the Veteran provided testimony on these matters during a Board videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In October 2015, the Board denied the claims for service connection for residuals of a left knee injury, and subsequent surgery, to include as secondary to service-connected right knee disability and for left knee scars claimed as secondary to left knee surgery. The Veteran subsequently appealed the October 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2016 Memorandum Decision, the Court set aside the October 2015 decision, and remanded the claims to the Board for further proceedings consistent with the Memorandum Decision. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. For reasons expressed below, the claims on appeal are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND In light of points raised in the Court's Memorandum Decision, and review of the claims file, the Board finds that further action on these claims, prior to appellate consideration, is required. The Veteran contends that her residuals of a left knee injury and subsequent surgery and left knee scars are secondary to her service-connected right knee disability. On December 2009 VA examination, the examiner opined that it is less likely than not that the Veteran's left knee arthritis had "any relationship to her opposite knee injury, which was incurred while on active duty." The examiner reasoned that previous x-rays showed lateral tilt of the patella and that this was a developmental and pre-existing injury that progressed over time without any relationship to the opposite knee. In an August 2015 VA medical opinion, the examiner responded in the negative to the question of whether the Veteran's left knee disability is "at least as likely as not aggravated beyond its natural progression by" the service-connected right knee disability. The examiner noted the 2005 MRI results showing changes in her left knee two years after service and opined that "[i]t is highly unlikely that 'compensating' for her right knee after service caused this significant and severe changes in the left knee in just two years. The examiner explained that the Veteran's problems with both knees pre-existed her service and paralleled each other rather than her right knee being a long standing problem that later contributed to the left knee disability. The examiner rejected the Veteran's private orthopedist's opinion and opined that "serving 11 days of active duty service (4 months of total ANG service) and having claimed injury to her [right] knee within the first week of the active duty period, that military service would have hardly been long enough to [have] 'exacerbated her existing problems' especially on the left side." In its March 2017 Memorandum Decision, the Court found that the August 2015k opinio did not adequately address secondary service connection for the Veteran's left knee disability based on the theory of aggravation. See 38 C.F.R. § 3.310 (2017). Given the above, the Board finds that another remand of the left knee injury/surgery residuals claim, and intertwined left knee scar claim , to obtain further medical opinion evidence is warranted. See 38 U.S.C.A. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App.79, 83 (2006). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination or to obtain a medical opinion when developing a service connection claim, it must obtain or provide one that is adequate for purposes of the determination being made). To this end, the AOJ should to obtain an addendum opinion from the August 2015 opinion provider, or, if necessary, from another appropriate physician based on claims file review, if possible. The AOJ should only arrange ). Only arrange for the Veteran to undergo further VA examination, by an appropriate physician, if one is deemed necessary in the judgment of individual designated to provide the addendum opinion. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving VA treatment from the VA Eastern Colorado Healthcare System, and records from that system dated through January 2017 are associated with the claims file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the AOJ should obtain from the VA Eastern Colorado Healthcare System all pertinent records of evaluation and/or treatment of the Veteran, dated since January 2017, following the current procedures prescribed in 38 C.F.R. § 3.159 (c) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103 (b)(1) (West 2012); but see also 38 U.S.C.A. § 5103 (b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2012); 38 C.F.R.§ 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the VA Eastern Colorado Healthcare System () all outstanding, pertinent records of evaluation and/or treatment of the Veteran, particularly records dated since January 2017.. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the remaining claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, records of private (non-VA) treatment. Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and responses from each contacted entity have been associated with the claims file, arrange to obtain an addendum opinion from the August 2015 VA examiner, If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the claims file, and arrange to obtain an opinion from an appropriate physician based on file review (if possible). Only arrange for the Veteran to undergo further VA examination, by an appropriate physician, if one is deemed necessary in the judgment of individual designated to provide the addendum opinion. The contents of the entire electronic claims file (in VBMS and Virtual VA) (Legacy Content Manager)), to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran's documented history and lay assertions. If an examination is conducted, all indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. With respect to each diagnosed left knee disability (other than post-surgical scars) currently present or present at any time pertinent to the claim for service connection (even if now asymptomatic or resolved), the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) the disability is or has been aggravated (i.e., worsened beyond the natural progression) by service-connected right knee disability. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from aggravation, to include by identifying, to the extent possible, the baseline level of disability prior to aggravation. In rendering the requested opinion, the physician must consider and discuss all pertinent in- and post-service medical evidence as well as all lay assertions, to include the Veteran's competent assertions as to the nature, onset and continuity of left knee symptoms. Notably, because the question posed involves secondary, rather than direct, service connection, the length of time between the Veteran's service and the manifestation the left knee disability should not, alone, serve as the sole basis for the denial. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the remaining claims on appeal in light of all pertinent evidence (to particularly include all that added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication) and legal authority. 7. If any benefit(s) )sought on appeal remain(s) denied, furnish to the Veteran and her representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether any benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2017).